Although current illegal drug use is not protected under California or federal law, employers with 25 or more on payroll must reasonably accommodate eligible employees who wish to enter an alcohol or drug rehabilitation program.  See, California Labor Code sections 1025-1028.

Smaller employers may also need to provide time off to attend such programs as a reasonable accommodation under the federal Americans with Disabilities Act and/or California’s Fair Employment and Housing Act.

Thus, all California employers should consider including an alcohol and drug rehabilitation policy in their employee handbook.

Policy Drafting Tips:

• Explain how the company will reasonably accommodate employees who voluntarily participate in a treatment or rehabilitation program, provided that this does not impose undue hardship for the employer;
• Determine whether the time off will be paid or unpaid;
• Permit the employee to use available paid sick leave benefits;
• Make reasonable efforts to safeguard the employee’s privacy; and
• Reiterate the company may refuse to hire or may discharge employees who, based on current alcohol or drug use, are unable to perform job duties properly or safely.

Take-Aways:

Implement and regularly review your handbook to include an alcohol and drug rehabilitation policy, and educate and train your supervisors on these laws.

We publish this series to educate employers on best practices for a well-written handbook that assists applicants, employees, and management alike. To purchase our 2023 template handbook – which contains the above policy and much more – and accompanying forms or for more information, please contact Office Manager Aimee Rosales at 626.583.6600 or officemgr@tbowleslaw.com.

See also:

• Workplace Discriminators, Expanded Third-Party Service Companies May Be Liable as “Employers” – On the Hook, New Look (August 25, 2023)
• Attendance and Absence Policy – Show Up Standards (June 22, 2023)
• Keeping It Tight – Drug- and Alcohol-Free Workplace Policy (August 5, 2022)

Cindy Bamforth
September 14, 2023